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Archive for the ‘Employment Law Blog – GA’ Category

Whistling While You Work: Nurses’ Complaints about Internal Procedures Not Protected Under Georgia Whistleblower Act

Posted on: August 15th, 2017

By: Robyn M. Flegal

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In late June 2017, the Georgia Court of Appeals held that expressions of general safety concerns do not rise to the level of activity protected by Georgia’s Whistleblower Statute – no matter how well-founded or well-intended.  The court reached its conclusion after considering a retaliation action brought by two nurses who were terminated after they voiced concerns to their supervisors about the way a Georgia healthcare provider staffed its shifts (one of the nurses raised her issues after a patient attempted suicide). The hospital, however, cited failure of the nurses to perform their assigned shifts as the reason for their terminations.

Georgia’s Whistleblower Statute prohibits public employers from (1) retaliating against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency; or (2) retaliating against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.

The Court decided that the trial court properly granted summary judgment to the defendant healthcare provider because the nurses’ complaints concerned only internal operating procedures. The women’s whistleblower action failed because they were unable to demonstrate that they disclosed a violation of a law, rule, or regulation to a supervisor or objected to participating in an activity they thought violated the same.

Public employers should be well aware of Georgia’s Whistleblower Statute and what constitutes protected activity thereunder. For more information, contact Robyn Flegal at [email protected].

Georgia Firefighter Standards & Training Council Issues Proposed Amendments to Rules for Cancer Insurance Coverage

Posted on: July 31st, 2017

By: Pamela F. Everett

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On July 14, 2017, we published a blog regarding House Bill 146 which amended O.C.G.A. §25-3-23 to provide cancer insurance coverage to fire fighters. This Bill, which becomes effective January 1, 2018, requires that all Georgia cities, counties and private companies with legally organized fire departments purchase and maintain cancer insurance coverage for firefighters.   In this blog, we noted that the Georgia Firefighter Standards & Training Council (GFSTC) had been authorized to adopt rules and regulations as necessary to implement the provisions of this new Code section and to establish and modify the minimum requirements for all fire departments operating in Georgia.

On July 19, 2017, GFSTC issued its proposed changes to its 2016 Rules & Regulations, specifically, Section 205-1-2-.02 Minimum Requirements for Fire Departments, for comment to fire departments throughout the state.

The proposed changes are as follows:

  1. All legally organized fire departments are required to purchase and maintain coverage in compliance with O.C.G.A. §25-3-23(b);
  2. All cities and counties using Association of County Commissioners of Georgia and Georgia Municipal Association for insurance coverage are required to provide proof of insurance coverage for all personnel;
  3. All departments using other insurance carries or means of being self-insured shall provide a copy of the policy, council/commission resolution or other proof of coverage; and
  4. All GFSTC Compliance Packages must now contain a copy of an insurance certificate or other proof of coverage that complies with O.C.G.A. §25-3-23(b).

We will continue to keep you apprised of developments in this area as they occur. In the meantime, if you have any questions or would like more information, please contact Pamela Everett at [email protected] .

Georgia Passes New Sick Leave Law

Posted on: May 31st, 2017

By: Brad Adler

As spring was rolling into Atlanta, so was momentum for the Georgia legislature to pass a new sick leave law for Georgia employers. Finally, in late March, Georgia passed SB 201, which requires employers who offer sick leave to allow employees to use their sick leave to care for immediate family members. The new law only applies to employers who employ 25 or more employees (but excludes employers who offer an employee stock ownership plans) are excluded and to employees who work at least 30 hours per week.

In short, the law requires covered employers to allow up to five days of existing sick leave per year to be used by employees to care for “immediate family members,” which includes employees’ children, spouses, parents, grandchildren, grandparents, and dependents. Please note, however, that the law does not extend the amount of sick leave employees may earn or accrue, nor does it require employers to modify sick leave policies other than to allow some of that leave to be used to care for immediate family members. Practically speaking, this new leave law serves as a mini-FMLA since employees can use sick leave to care for immediate family members. But for those employers who simply have one PTO bank, this new law should not have any real impact as employees would have been able to use PTO to care for a family member prior to this law going into effect.

The law does not create a new cause of action against employers, so it is difficult to predict how violations of the law will be enforced (if enforced at all). Furthermore, the law is slated to expire after three years, unless it is renewed by the General Assembly. The law will go into effect on July 1, 2017. 

For any questions, please contact Brad Adler at [email protected].

Trump Has Opportunity to Appoint 4 Judges to Federal Bench in Georgia

Posted on: March 31st, 2017

By: Amanda M. Cash

While the national media is focused on President Trump’s appointees for positions such as Labor Secretary and the Supreme Court, Georgia employers may not realize that President Trump has the opportunity to make a direct impact on the Georgia legal scene.

There are several vacant positions on the Georgia federal bench that will likely be filled by President Trump’s nominees at some point in the future. As of March 31, the Northern District of Georgia has two vacancies, while the Middle and Southern District have one vacancy each. Like Supreme Court justices, the president nominates individuals to fill those open federal judgeships, subject to confirmation by the Senate.

Why does this matter to Georgia employers? In the unfortunate event your company is sued by a current or former employee for violations of federal employment laws, the case will likely be heard in federal court by federal judges.  Georgia employers should keep an eye on who is nominated to these vacant federal judgeships as these judges could be ruling on your case in the event you are sued by an employee. We will keep you updated as more information comes available about potential nominees. 

For any questions, please contact Amanda Cash at [email protected].

 

Eleventh Circuit Says No Title VII Protection for Sexual Orientation Discrimination

Posted on: March 17th, 2017

Image result for gender nonconformityBy: Amanda Hall

A split three judge panel from the Eleventh Circuit Court of Appeals ruled that there is no Title VII protection for sexual orientation discrimination.  In Evans v. Georgia Regional Hosp. et al., Eleventh Circuit Judges William Pryor and Robin Rosenbaum, as well as District Judge Martinez, sitting by designation from the Southern District of Florida, addressed this issue for the first time on behalf of the Eleventh Circuit.  The majority opinion relied upon binding precedent from the previous Fifth Circuit in recognizing that a plaintiff may not state a claim for sex discrimination or gender stereotyping solely by alleging that they were treated differently due to their sexual orientation.

The concurrence and the dissent in this case show the divisions over this issue.  Judge Pryor concurred specially to address the arguments made by the dissent and the EEOC. In his concurrence, Judge Pryor noted the difference between a sexual orientation discrimination claim, which he reasoned cannot be brought under Title VII, and gender stereotyping or gender non-conformity claim, which he found is actionable.  Judge Pryor noted that a gender non-conformity claim “is, and always has been, behavior based.”  On the other hand, discrimination claims based upon sexual orientation, standing alone and not based upon actions or behavior of the plaintiff, are status-based, and “[s]tatus-based protections must stem from a separate doctrine or directly from the text of Title VII.”  Because sexual orientation is not identified as a protected class within the statute, Judge Pryor opined that it is not protected by Title VII, and that any such protection must come from Congress amending the statute, as opposed to the judiciary.

Judge Rosenbaum’s dissent argued that “discrimination against an employee solely because she fails to conform to the employer’s view that a woman should be sexually attracted to men only” is necessarily a claim for gender non-conformity.

Because the panel concluded that the plaintiff’s sexual orientation discrimination claims are barred by binding precedent, and binding Eleventh Circuit precedent may only be overruled by a subsequent opinion by either the full Eleventh Circuit (referred to as an en banc decision) or a decision of the Supreme Court, it is likely that the plaintiff in this case will seek to have this case reheard en banc.  Indeed, Judge Rosenbaum expressly urged the court to rehear this case en banc in her dissent.

Unless and until further action is taken, an employee in the Eleventh Circuit may not pursue a claim for discrimination based solely upon his or her sexual orientation.  Employers should continue to recognize, however, that gender stereotyping — based upon an employee’s behavior in acting (or failing to act) in accordance with gender norms — constitutes an actionable form of sex discrimination.

For more information, contact Amanda Hall at [email protected].